338 F.

2d 12

UNITED STATES of America,

v.
Ralph GINZBURG, Documentary Books, Inc., Eros Magazine,
Inc.
and Liaison NewsLetter, Inc., Appellants.
Nos. 14742-14745.

United States Court of Appeals Third Circuit.

Argued June 16, 1964.
Decided Nov. 6, 1964.

David I. Shapiro, Washington, D.C. (Sidney Dickstein, Washington, D.C.,

Norman Oshtry, Philadelphia, Pa., on the brief), for appellants.
J. Shane Creamer, Asst. U.S. Atty., Philadelphia, Pa. (Drew J. T. O'Keefe,
U.S. Atty., Philadelphia, Pa., on the brief), for appellee.
Morey M. Myers, Scranton, Pa., Murry Powlen, Philadelphia, Pa., Melvin
L. Wulf, New York City, on the brief for American Civil Liberties Union
and Its Pennsylvania Affiliate, amici curiae.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.

Appellants were convicted of violating the federal obscenity law, 18 U.S.C.

1461. All three publications involved were found to be obscene under the
statute. The record shows that in September, 1962, appellant Eros Magazine,
Inc. of which appellant Ginzburg was editor and publisher, after a great deal of
deliberation endeavored to obtain what was considered advantageous mailing
privileges from Blue Ball, Pennsylvania. Meeting with no success there, a
similar try was made with the Post Office at Intercourse, Pennsylvania. Again
rejected, a final successful effort was made at the Middlesex, New Jersey Post
Office from which over five million advertisements of Eros were mailed. It is
not disputed that the bulk of the mailings for the three publications was from
Middlesex. In the advertisements above mentioned, inter alia, appeared the

following:
2

'The publication of this magazine-- which is frankly and avowedly concerned

with erotica-- has been enabled by recent court decisions * * * to be published.'

The magazine Eros was thereafter mailed out from Middlesex. It is with
Volume 1, No. 4, 1962 thereof that we are concerned. Eros is a quarterly. Its
price is $25. a year.

The second publication was mailed in November, 1962. It was a book which
had been originally titled by its author 'The Housewife's Handbook for
Promiscuity'. That book so titled had been sold by mail to a selected list by the
author. The title was later changed to read 'Housewife's Handbook on Selective
Promiscuity'. The mailing in this instance was under the latter title. Its price is
$4.95.

The third publication is a biweekly newsletter called Liaison. According to the

witness Darr who was hired by appellant Ginzburg as editor of Liaison,
Ginzburg told him that '* * * Liaison was to cover the same scope (as Eros), in
a more newsworthy fashion.' Darr was hired after he had specially written and
submitted a piece titled 'How to Run a Successful Orgy'. Ginzburg telephoned
him and asked him 'When can you start to work?' The particular piece in
revised form was published in Liaison. The price of Liaison was $15, later
reduced to $4.95.

The advertising material, concededly not obscene of itself, was admittedly

mailed by appellants on the specified dates with full knowledge of its contents.

The case was tried to the court, a jury trial having been waived by appellants.
The trial consumed five days. Appellants were found guilty on all counts on
June 14, 1963. Later, at the request of the appellants, on August 6, 1963, the
court filed special detailed findings of fact. Summing up those findings, the
court said:

'In conclusion, after a through reading and review of all the indicted materials,
this Court finds that said materials are compilations of sordid narrations dealing
with sex, in each case in a manner designed to appeal to prurient interests. They
are devoid of theme or ideas. Throughout the pages of each can be found
constant repetition of patently offensive words used solely to convey debasing
portrayals of natural and unnatural sexual experiences. Each in its own way is a
blow to sense, not merely sensibility. They are all dirt for dirt's sake and dirt for

money's sake.'
9

We have read, examined and considered the publications involved in this

appeal, '* * * in the light of the record made in the trial court, * * *.' Jacobellis
v. Ohio, 378 U.S. 184, 196, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964). The
only important question before us is whether the publications are obscene under
the federal statute. Since this calls for a constitutional judgment it is our duty to
decide it. Under the obscenity tests laid down by the Supreme Court, the
Constitutional status of the publications '* * * must be determined on the basis
of a national standard.' Jacobellis, supra, p. 195, 84 S.Ct. p. 1682. This is
peculiarly fitting here where over five million advertisements for the Eros
material were mailed out to prospects in this country.

10

Also we have very much in mind that as the Supreme Court stated in Roth v.
United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957):

11

'All ideas having even the slightest redeeming social importance-- unorthodox
ideas, controversial ideas, even ideas hateful to the prevailing climate of
opinion-- have the full protection of the guaranties, unless excludable because
they encroach upon the limited area of more important interests. But implicit in
the history of the First Amendment is the rejection of obscenity as utterly
without redeeming social importance.'

12

The Court went on to say, 354 U.S. p. 487, 77 S.Ct. p. 1310, that '* * * sex and
obscenity are not synonymous' and ruled on p. 487, 77 S.Ct. p. 1310 that
'Obscene material is material which deals with sex in a manner appealing to
prurient interest.' It quoted with approval the American Law Institute, Model
Penal Code, proposed official draft (May 4, 1962), 251.41(1):

13

"* * * A thing is obscene if, considered as a whole, its predominant appeal is to

prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion,
and if it goes substantially beyond customary limits of candor in description or
representation of such matters. * * *"

14

The same necessary quality named in Roth, supra, and Jacobellis, supra, as
affronting current national community standards is described in Manual
Enterprises v. Day, 370 U.S. 478, 482, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962) as
"patent offensiveness' or 'indecency". At pages 483, 484, 82 S.Ct. pages 14341435, the Day opinion, speaking of the federal obscenity law, notes that '* * *
the statute since its inception has always been taken as aimed at obnoxiously
debasing portrayals of sex. * * * the statute reaches only indecent material

which, as now expressed in Roth v. United States, supra, 354 U.S. at 489, 77
S.Ct. at 1311, 'taken as a whole appeals to prurient interest."
15

This brings us to the special circumstances revealed in the present appeal. We

are not dealing with a novel by a well known novelist, written as and for a work
of fiction with a firm base of opposition to well defined then existing social
conditions, which was held mailable because its '* * * predominant appeal * *
* (was) demonstrably not to 'prurient interest'.' Grove Press v. Christenberry,
276 F.2d 433, 437 (2 Cir. 1960). Nor have we in this appeal anything
comparable to the autobiographical account of the scabrous life of a writer of
some pretentions, where numerous revolting volting episodes were part of a
text which the Supreme Court of Massachusetts (184 N.E.2d 328, 334 (1962))
accepted '* * * as a conscious effort to create a work of literary art.'What
confronts us is a sui generis operation on the part of experts in the shoddy
business of pandering to and exploiting for money one of the great weaknesses
of human being. Appellants' fundamental objective obviously was and is to,
more or less openly, force their invitations to obscenity upon the American
public through the United States mails. They did this in reliance on their own ill
conceived theory that all barriers to obscenity have in effect been removed.
They were not concerned with trying to circulate authentic artistic efforts that
may incidentally have four letter words or nudity or sex as an integral part of a
work, whatever art form it may be. Eros was declared as avowedly concerned
with one thing, what in the prospectus is described as 'erotica' and which, it is
stated, has been enabled to be published 'by recent court decisions.' An
undeniable example of what was meant by erotica is the content of Eros, Vol. 1,
No. 4.

16

Seemingly to soften their approach and to pick up whatever support that might
be available, appellants offer separate defenses for each of the publications. For
Eros it is claimed in the brief that it 'has redeeming social importance with
respect to literary and artistic values'. Having in mind the above proclaimed
objective, even a casual reading makes it readily apparent that bits of
nonstatutory material have simply been laced into the obscene structure which
is the Eros volume in evidence with the intent of creating that impression. This
seems to us not just frivolous but a bold attempt to pioneer both in the
elimination of the law itself and in the collection of the resultant profits. We
have not seen nor been referred to any decision which countenances that sort of
brazen chicanery. If permitted, it would stultify the carefully wrought formula
whereby the basic law guarding the national community from obscenity is
upheld but not at the expense of honest ideas founded on at least some social
importance even if it be but the slightest.

17

From our own close reading and scrutiny of Eros, its basic material
predominantly appeals to prurient interest; it is on its face offensive to present
day national community standards, and it has no artistic or social value. The
sham device of seeking to somewhat cloak the content with non-offensive
items falls of its own evil weight. Cf. Kahm v. United States, 300 F.2d 78 (5
Cir. 1962).

18

It is asserted that the Handbook has some social-scientific importance.

Testimony along that line was expressly disbelieved by the trial judge. Our
own reading and examination of this work leads us to the same conclusion. The
original title to the book gives its real purpose. That title, 'The Housewife's
Handbook for Promiscuity' is a fitting capsule description of the content. The
mere change in the title, making it sound like some sort of a text book or tract,
shows the arrogant insistence of these appellants that raw obscenity is at this
time properly an element of national community life. There is nothing of any
social importance in the Handbook. It is patently offensive to current national
community standards. Applying those standards to the average person its
dominant theme as a whole appeals to prurient interest.

19

Appellants would have it that the book fits into the same category as 'Fanny
Hill,' found not obscene by the New York Court of Appeals in Larkin et al. v.
G. P. Putnam's Sons, 14 N.Y.2d 399, 252 N.Y.S.2d 71, 200 N.E.2d 760 (1964).
Whatever may eventually be the outcome of that litigation, it has no bearing on
this appeal for, inter alia, it was there specifically held as to the book that 'It has
a slight literary value and it affords some insight into the life and manners of
mid-18th Century London.'

20

It is argued that Liaison, the newsletter, is without the statute, on the ground
that it does not appeal to prurient interest. As we have seen, according to
Ginzburg, the directing head of all three publications, the purpose of Liaison
was to cover the same scope as Eros, in a more newsworthy fashion. Our study
of it bears this out. Its material openly offends current national community
standards in much the same fashion as does Eros. Taken as a whole, its appeal
is directed to the prurient interest of the average person in the national
community. The type of thing that it is, as visualized from the test given the
successful candidate for its editor, is confirmed by the material printed in it.
There is no pretension that it has any social significance or literary merit.

21

There is defense testimony which would have it that all three publications are
not within the reach of the statute. The trier of the facts was not persuaded by it
nor are we.

22

Finding, as we do, that Eros, the Handbook and Liaison are obscene,
affirmance of the convictions on the advertising counts follows as of course.

23

The contentions of appellants that the convictions on the Eros and Liaison
counts must be reversed because the trial court failed to find those publications
guilty within the statute are without merit. This is clear as to Eros in the Special
Findings of Fact, Nos. 16, 17, 18, 19, the concluding paragraph of the Findings
above quoted and also, though it is not necessary, in the court's opinion under
the caption 'Eros Vol. 1, Number 4, 1962.' The Liaison Findings, which fully
substantiate conviction on those counts, are Numbers 11, 12, 13, 14, 15, the
concluding paragraph of the Findings and also, though it is not necessary, the
court's opinion under the caption 'Liaison Vol. 1, No. 1.'

24

There is no substance to the complaint regarding the time of filing of the

Special Findings of Fact. Rule of Criminal Procedure 23(c) provides that: 'In a
case tried without a jury the court shall make a general finding and shall in
addition on request find the facts specially.'

25

The trial court's comment in its opinion on this point which is in strict accord
with the record, is as follows:

26

'During the trial the Court made it clear to counsel on more than one occasion
that the entry of special findings would be delayed beyond the entry of a
general finding if a general finding of guilty was to be entered on any of the
counts. There were no objections by defendants' counsel to this proposed
procedure. Thus, any objection to the delayed entry of special findings was
waived by silence on the record. Likewise after verdict was rendered by the
Court, no objections were stated for the record at that time.

27

'On the merits, this was not an ordinary criminal case where fundamental
operative facts had to be determined. Most of the facts are not clear and precise
but instead are mixed with questions of law. This is the nature of the case. It is
necessary in such a case for the Court to carefully consider all the legal
ramifications of the factual setting, which is really largely agreed upon. Such
careful consideration requires detailed legal research and assistance of counsel.
Consequently, the Trial Court requested proposed findings and such other
assistance as counsel could offer. Defendants were not precluded from
submitting findings but apparently chose not to do so. We find no merit in this
issue raised by them, apparently as an afterthought.'

28

Under the facts the findings were filed promptly and properly within the above

rule.
29

It is also asserted that the trial court converted evidence of criminal intent
admissible against one defendant into proof of criminal intent on the part of all
defendants. This concerns the two unsuccessful attempts to mail out Eros
advertising material. The successful mailings from Middlesex were for all three
publications. The point is de minimis in any event. The stipulation between
counsel for the parties and approved by the court states that the advertising
material was mailed by the defendants on the occasions alleged in the
indictments with full knowledge of the contents thereof. We do not find the
slightest indication of any substantial confusion on the part of the trial judge
with reference to the attempted mailings and mailings of the material involved
in the appeal.

30

Appellants object to the admission of the rebuttal testimony of Government

witness, Dr. Frignito. This testimony was rightfully presented and received as
rebuttal evidence. The witness' complete answer as to the effect of the
Handbook makes it evident that he was considering the book's effect on the
entire community, not some group thereof. We find no error in this connection.

31

Appellants claim error because at the time of the defense motions for dismissal
of the indictment and for acquittal at the end of the Government's case, the trial
judge who had read the indictment, as he says in his opinion, had not read at
that time '* * * each and every word or sentence of each of the indicted
materials * * *' but, as he further said, '* * * the Court read enough of the
indicted materials to be able to rule as a matter of law that the Government had
made out a prima facie case.' There is no prejudicial error in this incident.

32

Finally, appellants urge that the court erred in striking the affidavit and exhibits
in support of the defense motion to dismiss the indictment. The defense on that
motion was correctly limited by the court to the face of the indictment and
whether it accurately charged the named offenses and gave adequate
notification thereof to the defendants. The defense attempted by the affidavit
and letters to put before the court in ex parte form, opinions from various
sources favorable to the Handbook. These were trial matters and so held by the
judge.

33

The district judge was acutely aware of the issue of constitutional law raised in
this action. He was conversant with the Supreme Court's views on the federal
obscenity statute and was guided accordingly. Our study of the record,
including the transcript and convicted materials, establishes that he tried it

fairly, carefully and competently. He made no substantial errors of law. We are

convinced that, under the evidence, he was justified in finding the defendants
guilty on all counts. As we have indicated, we have independently arrived at
that same conclusion.
34

The judgments of the district court will be affirmed.